Citation Nr: 0512268
Decision Date: 05/04/05 Archive Date: 05/18/05
DOCKET NO. 02-19 777 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for a left knee
disability.
2. Entitlement to an increased initial disability rating for
service-connected degenerative arthritis of the lumbar spine,
currently evaluated as 10 percent disabling.
REPRESENTATION
Veteran represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. Bush, Associate Counsel
INTRODUCTION
The veteran served on two periods of active duty: from April
1956 to April 1959 and from June 1959 to June 1962.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a February 2002 rating decision issued
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Manchester, New Hampshire which denied the veteran's
claim of entitlement to service connection for a left knee
disability and granted the veteran's claim of entitlement to
service connection for degenerative arthritis of the lumbar
spine and assigned a 10 percent disability rating. The
veteran subsequently moved to Illinois; the Chicago RO now
has original jurisdiction over the veteran's claims folder.
The veteran was originally scheduled to testify at a personal
hearing, held by means of video teleconferencing, in
September 2003 at the Chicago RO. In an August 2003
statement, the veteran's representative submitted a written
request that the hearing be postponed; that request was
granted in September 2003. The RO sent the veteran a letter
in November 2004 detailing the date and time of his
rescheduled hearing. The veteran failed to appear at the
December 6, 2004 hearing.
The veteran's representative submitted a statement that was
received by the Chicago RO on December 30, 2004 and faxed to
the Board on January 5, 2005, asking that the veteran's
videoconference hearing be rescheduled and held at the St.
Louis RO. However, in March 2005 the veteran submitted a
statement asking that "all videoconferences concerning my
appeal be cancelled." The veteran's hearing request is
therefore withdrawn. See 38 C.F.R. § 20.704(e) (2004).
The issue of entitlement to an increased initial disability
rating for degenerative arthritis of the lumbar spine is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC) in
Washington, D.C.
Other issue not on appeal
The Board notes that veteran filed a claim for VA benefits
for a right elbow disability pursuant to 38 U.S.C. § 1151 in
July 2002. His claim was denied in a March 2003 VA rating
decision. The veteran filed a notice of disagreement, and a
statement of the case was issued in July 2003. The veteran
failed to file a timely substantive appeal (VA Form 9).
Therefore, the issue of entitlement to 38 U.S.C.A. § 1151
benefits is not within the jurisdiction of the Board and will
not be further addressed. See 38 U.S.C.A. § 7105 (West
2002); 38 C.F.R. §§ 20.200, 20.202 (2002); see also Archbold
v. Brown, 9 Vet. App. 124, 130 (1996) [pursuant to
38 U.S.C.A. § 7105(a), the filing of a notice of disagreement
initiates appellate review in the VA administrative
adjudication process, and the request for appellate review is
completed by the claimant's filing of a substantive appeal
after a statement of the case is issued by VA].
FINDING OF FACT
Competent medical evidence does not support a finding that a
left knee disability currently exists.
CONCLUSION OF LAW
A left knee disability was not incurred in or aggravated by
active military service.
38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran is seeking entitlement to service connection for
a left knee disability.
In the interest of clarity, the Board will review the
applicable law and regulations, briefly describe the factual
background of this case, and then proceed to analyze the
claim and render a decision.
The Veterans Claims Assistance Act
The Board has given consideration to the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(2000) (VCAA) [codified as amended at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107]. The VCAA eliminated the former statutory
requirement that claims be well grounded. Cf. 38 U.S.C.A. §
5107(a) (West 1991). The VCAA includes an enhanced duty on
the part of VA to notify a claimant as to the information and
evidence necessary to substantiate a claim for VA benefits.
The VCAA also redefines the obligations of VA with respect to
its statutory duty to assist claimants in the development of
their claims.
See 38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations
implementing the VCAA have been enacted. See 66 Fed. Reg.
45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§
3.102, 3.156(a), 3.159, and 3.326(a)].
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. Except for
provisions pertaining to claims to reopen based upon the
submission of new and material evidence, which are not at
issue here, the implementing regulations are also effective
November 9, 2000. The VCAA is accordingly applicable to this
case. See Holliday v. Principi, 14 Vet. App. 280 (2000) [the
Board must make a determination as to the applicability of
the various provisions of the VCAA to a particular claim].
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of this issue has proceeded in
accordance with the provisions of the law and regulations.
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
As noted above, the former well groundedness standard was
eliminated by the VCAA. The current standard of review is as
follows.
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2004). In
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court)
stated that "a veteran need only demonstrate that there is an
'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim.
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also
Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter
from VA to an appellant describing evidence potentially
helpful to the appellant but not mentioning who is
responsible for obtaining such evidence did not meet the
standard erected by the VCAA].
To comply with the aforementioned VCAA requirements, the RO
must satisfy the following four requirements.
First, the RO must inform the claimant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2004). The Board observes that the veteran was
notified by the August 2002 statement of the case (SOC) of
the pertinent law and regulations, of the need to submit
additional evidence on his claim, and of the particular
deficiencies in the evidence with respect to his claim.
More significantly, a letter was sent to the veteran in July
2001 which was specifically intended to address the
requirements of the VCAA. That letter detailed the evidence
needed to substantiate his claim for service connection,
specifically an injury in military service or a disease that
began in or was made worse during military service, a current
physical disability and a relationship between the current
disability and service. The July 2001 letter further stated
that the RO had obtained service medical records and private
and VA treatment records identified by the veteran. Thus,
both the July 2001 VCAA letter and the August 2002 SOC not
only notified the veteran of the evidence already of record,
but also notified him specifically of the additional evidence
that was needed in his case.
Second, the RO must inform the claimant of the information
and evidence the VA will seek to provide. See 38 U.S.C.A. §
5103 (West 2002); 38 CFR § 3.159(b)(1) (2004). In the July
2001 letter, the RO informed the veteran that the RO would
help him get records from VA medical facilities, and such
things as "medical records, employment records, or records
from other Federal agencies," but that he must provide
enough information about these records so that they could be
requested on his behalf. The RO also advised him that a VA
medical examination would be provided if it was necessary to
make a decision in his claim.
Third, the RO must inform the claimant of the information and
evidence the claimant is expected to provide. See 38
U.S.C.A. § 5103 (West 2002); 38 CFR § 3.159(b)(1) (2004).
The July 2001 letter informed him that the RO may ask him to
sign a release for certain records, or if he chose he could
get copies of them himself and send them directly to the RO.
He was instructed to complete and submit the enclosed VA Form
21-4142, "Authorization for the Release of Information," to
authorize the RO's retrieval of such on the veteran's behalf.
The letter stated that it was the veteran's responsibility to
ensure that these records are received by the RO.
Finally, the RO must request that the claimant provide any
evidence in the claimant's possession that pertains to the
claim. See 38 U.S.C.A. § 5103 (West 2002); 38 CFR §
3.159(b)(1) (2004). The July 2001 letter asked the veteran
to "send the information describing additional evidence or
the evidence itself." The Board believes that this request
substantially complies with the requirements of 38 C.F.R. §
3.159 (b) in that it informed the veteran that he could
submit or identify evidence other than what was specifically
requested by the RO.
The Board finds that the July 2001 letter properly notified
the veteran of the information, and medical or lay evidence,
not previously provided to VA that is necessary to
substantiate the claim, and it properly indicated which
portion of that information and evidence is to be provided by
the veteran and which portion VA would attempt to obtain on
behalf of the veteran. The Board notes that, even though the
RO requested a response within 60 days, the July 2001 letter
also expressly notified the veteran that he had one year to
submit the requested information and/or evidence, in
compliance with 38 U.S.C.A. § 5103(b) [evidence must be
received by VA within one year from the date notice is sent].
The one year period has since elapsed.
The Board notes that the fact that the veteran's claim was
adjudicated by the RO in February 2002, prior to the
expiration of the one-year period following the July 2001
notification to the veteran of the evidence necessary to
substantiate his claim, does not render the RO's notice
invalid or inadequate. The recently enacted Veterans
Benefits Act of 2003, Pub. L. No. 108-183, § 107, 117 Stat.
2651, ___ (Dec. 16, 2003) [to be codified at 38 U.S.C. §
____], made effective from November 9, 2000, specifically
addresses this matter and provides that nothing in paragraph
(1) of 38 U.S.C.A. § 5103 shall be construed to prohibit VA
from making a decision on a claim before the expiration of
the one-year period referred to in that subsection.
One final comment regarding notice is in order. A review of
the record reveals that the veteran was provided notice of
the VCAA in July 2001, prior to the initial adjudication of
this claim by rating decision in February 2002. Therefore,
there is no prejudice to the veteran in proceeding to
consider the claim on the merits. See Bernard v. Brown, 4
Vet. App. 384 (1993).
Based on this procedural history, the Board finds that the
veteran was notified properly of his statutory rights.
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2004).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it.
In particular, the RO has obtained the veteran's service
medical records and private and VA treatment records. The RO
attempted to obtain private medical records from Dr. R.E.L.
but was unsuccessful; Dr. R.E.L. notified the RO in May 2001
that there were no records available for the veteran.
The Board has given thought as to whether a VA physical
examination of the veteran and/or a medical nexus opinion
should be obtained. See 38 U.S.C.A.
§ 5103A (West 2002); 38 C.F.R. § 3.159 (2004). However, as
explained below the veteran has presented no competent
medical evidence as to the claimed left knee disability. In
the absence of competent medical evidence of an in-service
left knee injury and a current left knee disability, physical
examination of the veteran is not necessary. Referral for a
medical nexus opinion is similarly not necessary.
The Court has held on a number of occasions that a medical
opinion premised upon an unsubstantiated account is of no
probative value. See, e.g., Reonal v. Brown, 5 Vet. App.
458, 460 (1993); Moreau v. Brown, 9 Vet. App. 389, 395-396
(1996); Swann v. Brown, 5 Vet. App. 229, 233 (1993).
Obtaining a medical nexus opinion under the circumstances
presented in this case would be a useless exercise.
In so concluding, the Board finds that the circumstances here
presented differ from those found in Charles v. Principi, 16
Vet. App. 370 (2002), in which the Court held that VA erred
in failing to obtain a medical nexus opinion where evidence
showed acoustic trauma in service and a current diagnosis of
tinnitus. Significantly, in this case there is no evidence
of an in-service injury or a current left knee disability.
In short, the Board has carefully considered the provisions
of the VCAA in light of the record on appeal, and for the
reasons expressed above finds that the development of the
claim has been consistent with the provisions of the VCAA.
The veteran and his representative have been accorded
appropriate opportunity to present evidence and argument in
support of his claim. See 38 C.F.R. § 3.103 (2004). As noted
above, the veteran failed to attend a video teleconference
hearing scheduled in December 2004. Neither the veteran or
his representative has indicated the existence of any other
evidence that is relevant to his appeal.
Accordingly, the Board will proceed to a decision on the
merits as to the issue on appeal.
(CONTINUED ON NEXT PAGE)
1. Entitlement to service connection for a left knee
disability.
Pertinent law and regulations
In general, service connection may be granted for disability
or injury incurred in or aggravated by active military
service. 38 U.S.C.A. § 1131 (West 2002);
38 C.F.R. § 3.303 (2004).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. See Hickson v. West, 12 Vet. App. 247, 253
(1999). The determination as to whether these requirements
are met is based on an analysis of all the evidence of record
and the evaluation of its credibility and probative value.
See Baldwin v. West, 13 Vet. App. 1, 8 (1999).
Service connection presupposes a current diagnosis of the
claimed disability.
See Brammer v. Derwinski, 3 Vet. App. 233, 255 (1992).
Factual Background
Service medical records pertaining to the veteran's first
period of active service show that in April 1958 the veteran
presented for treatment after bumping his right knee on the
bumper of a vehicle. The veteran marked having a "trick or
locked" knee on his report of medical history for his first
separation examination in January 1959, but did not indicate
whether it was his right or left knee. There is no specific
reference to the left knee during the first period of
service.
There were no complaints for the second period of as to
problems with the veteran's left knee, and during his second
separation examination in April 1962 the veteran did not
report any knee trouble.
There are no pertinent medical records of left knee treatment
for almost four decades after separation from service. The
veteran presented to Dr. F.A.G. in April 1998 complaining of
pain in his left knee. The veteran reported that he had he
had fallen down three stairs at work in February 1998 and
struck his left knee, "causing it to ache." Dr. F.A.G.
noted the veteran's past medical history was negative for any
musculoskeletal problems. X-rays of the knees which were
ordered in May 1998 after continuing complaints of an aching
pain in the knees were within normal limits. Dr. F.A.G.
noted in June 1998 that "X-rays have not documented loss
body or evidence for anything that would involve surgical
correction." The assessment in January 1999 was "chronic
musculoskeletal pain, thoracolumbar prominent focus."
Also in the file are records from Seacoast Orthopedics and
Sports Medicine dated from September 2001 to February 2002.
The veteran reported his pain began in the 1960s, when he
hurt his left knee in the military. X-rays of the left knee
in January 2002 were within normal limits. In February 2002
an assessment of patellofemoral pain syndrome was made in
regards to the veteran's left knee. VA outpatient treatment
records include references to complaints of pain; no
diagnosis was rendered.
Analysis
As discussed above, in order to establish service connection
for the claimed disorder, there must be (1) medical evidence
of a current disability; (2) evidence of the in-service
incurrence or aggravation of a disease or injury; and (3)
medical evidence of a nexus between (1) and (2). See
Hickson, supra.
With respect to Hickson element (1), current disability,
there is no competent medical evidence that the veteran has a
left knee disability. Although the veteran has complained of
left knee pain to various health care providers since 1998,
there are no diagnoses in the claims folder of a left knee
disability, merely references to the reported pain.
Significantly, x-rays have been negative.
It is now well established that a symptom alone, such as
pain, absent a finding of an underlying disorder, cannot be
service connected. See Sanchez-Benitez v. West, 13 Vet.
App. 282, 285 (1999) [pain alone, without a diagnosed or
identifiable underlying malady or condition, does not in and
of itself constitute a disability for which service
connection may be granted].
To the extent that the veteran himself is attempting to
provide medical evidence concerning the existence of the
claimed disability, it is now well established that an
opinion of a person without medical training or experience on
medical matters such as diagnosis and etiology is entitled to
no weight of probative value. See Espiritu v. Derwinski, 2
Vet. App. 492, 494-5 (1992); see also 38 C.F.R. § 3.159
(a)(1) (2004) [competent medical evidence means evidence
provided by a person who is qualified through education,
training, or experience to offer medical diagnoses,
statements, or opinions].
As discussed in the law and regulations section above, it is
now well-settled that in order to be considered for service
connection, a claimant must first have a disability. See
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v.
Brown, 155 F.3d 1353 (Fed. Cir. 1998) [service connection may
not be granted unless a current disability exists]. In the
absence of any diagnosed disability regarding the left knee,
service connection may not be granted. Hickson element (1)
has not been met, and the veteran's claim fails on that basis
alone.
For the sake of completeness, the Board will address the
remaining two Hickson elements.
With respect to Hickson element (2), in-service incurrence of
a disease or injury, there is no medical evidence of an
injury or disease of the left knee in service.
In fact, there is no mention of a left knee injury until
April 1998, over three and one half decades after his
separation from service in June 1962. Significantly, at that
time the veteran attributed his left knee pain to a work-
related injury in February 1998. It was not until January
2002 that the veteran reported to a private health care
provider that he injured his left knee in service.
Thus, the only evidence of an in-service left knee injury is
found in recent statements of the veteran, made 40 years
after service, and which are in conflict with earlier
statements made by him which indicated that he injured his
left knee falling down stairs in February 1998.
It is the responsibility of the Board to determine the
credibility and probative value of the evidence. See Madden
v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases
cited therein [in evaluating the evidence and rendering a
decision on the merits, the Board is required to assess the
credibility, and therefore the probative value, of proffered
evidence in the context of the record as a whole].
Because the record as a whole clearly demonstrates that there
was no left knee injury in service, and the veteran never
mentioned such an injury until he brought up the subject in
connection with his claim for VA benefits approximately 40
years after his separation from service, the Board finds his
recent statements to be lacking probative value. See Forshey
v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey
v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) [noting
that the definition of evidence encompasses "negative
evidence" which tends to disprove the existence of an alleged
fact].
To the extent that the veteran is now contending that he
injured his left knee in service, his current contentions are
outweighed by the utterly negative service medical records.
See Curry v. Brown, 7 Vet. App. 59, 68 (1994)
[contemporaneous evidence has greater probative value than
history as reported by the veteran].
Moreover, the lack of any evidence of left knee
symptomatology for almost four decades after service and the
filing of the claim for service connection almost 40 years
after service is itself evidence which tends to show that no
injury to the left knee was sustained in service or that an
injury to the left knee, if any, did not result in any
disability. See Shaw v. Principi, 3 Vet. App. 365 (1992) [a
veteran's delay in asserting a claim can constitute negative
evidence that weighs against the claim]; see also Maxon v.
Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it
was proper to consider the veteran's entire medical history,
including the lengthy period of absence of complaint with
respect to the condition he now raised].
The Board believes that the most accurate report as to the
origin of the claimed left knee disability was related by the
veteran in April 1998. At that time, he reported falling
down stairs in February 1998. Not only was this statement
contemporaneous, but also at that time there was no issue of
monetary gain, as the veteran did not file his claim for
service connection until April 2001. See Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) [VA cannot ignore a
veteran's testimony simply because the veteran is an
interested party; personal interest may, however, affect the
credibility of the evidence].
Thus, to the extent that the veteran's current contentions
are in conflict with statements to the contrary he made in
April 1998, the Board finds that the statements made by the
veteran to health care providers in April 1998 to be more
probative than statements made decades later in the context
of a claim for monetary benefits from the government. Not
only may the veteran's memory be dimmed with time, but self-
interest may also play a role in the more recent statements.
See Pond v. West, 12 Vet. App. 341, 346 (1999).
Boiled down to its essence, all of the evidence concerning
the alleged in-service left knee injury emanates from the
veteran himself. The veteran's recent assertions are not
supported by any medical evidence, in particular the
veteran's service medical records. The Board rejects the
veteran's statements in light of the record as a whole.
Accordingly, Hickson element (2) is also not satisfied.
With respect to Hickson element (3), medical nexus, no
competent medical nexus exists. That is, no health care
provider has attributed any disability of the veteran's left
knee to his military service. It is clear that in the
absence of an in-service injury and a current diagnosis of a
disability in the left knee, a medical nexus opinion would be
an impossibility. Cf. Charles v. Principi, 16 Vet. App. 370,
374 (2002).
The Board notes in passing that some of the medical evidence
of record is suggestive of radiational pain to the left lower
extremity from a low back disability. This will be addressed
in the Board's remand below.
To the extent that the veteran himself is attempting to
provide a nexus between his claimed left knee disability and
his military service, his statements are not probative of a
nexus between the condition and military service. See
Espiritu, supra; see also Voerth v. West, 13 Vet. App. 117,
119 (1999) [unsupported by medical evidence, a claimant's
personal belief, no matter how sincere, is not probative of a
nexus to service].
In summary, in regards to the veteran's service connection
claim for a left knee disability, all Hickson elements have
not been met.
Conclusion
For the reasons and bases which have been expressed in detail
above, the Board finds that a preponderance of the evidence
is against this claim. The benefit sought on appeal is
accordingly denied.
ORDER
Entitlement to service connection for a left knee disability
is denied.
REMAND
2. Entitlement to an increased initial disability rating for
a service-connected low back disability, currently evaluated
as 10 percent disabling.
The veteran is seeking entitlement to an increased rating for
his low back disability, currently evaluated as 10 percent
disabling under Diagnostic Code 5003 [arthritis,
degenerative]. Specifically, he contends that his low back
symptomatology, to include pain that radiates into his left
leg, warrants a higher disability rating, as he unable to
perform many daily tasks of living.
After having carefully considered the matter, and for reasons
expressed immediately below, the Board believes that this
case must be remanded for further evidentiary and procedural
development.
Regulatory amendments
The pertinent rating criteria for disorders of the spine, see
38 C.F.R. § 4.71a, were revised effective September 26, 2003,
during the course of this appeal.
See 68 Fed. Reg. 51454 (August 27, 2003). The Board notes
further that effective September 23, 2002, the regulation
governing the evaluation of intervertebral disc syndrome, 38
C.F.R. § 4.71a, Diagnostic Code 5293, was revised. See 67
Fed. Reg. 54,345-54,349 (Aug. 22, 2002). The revised
criteria now provide for the evaluation of intervertebral
disc syndrome (pre-operatively or post-operatively) either on
the total duration of incapacitating episodes over the past
12 months or by combining under 38 C.F.R. § 4.25 separate
evaluations of its chronic orthopedic and neurological
manifestations along with evaluations for all other
disabilities, whichever method results in the higher
evaluation. The revised regulation defines an incapacitating
episode as a period of acute signs and symptoms that requires
bed rest prescribed by a physician and treatment by a
physician. These revised criteria have not been applied by
the RO, and the veteran has not been furnished notice of the
more recent changes.
Readjudication by RO
Subsequent to the August 2002 SOC, the RO received additional
treatment records from the VA Medical Center in Indianapolis.
The veteran also presented for a VA spine examination in July
2004. The treatment records and VA examination were not
previously associated with the veteran's claims file, and are
pertinent to the veteran's initial increased rating claim.
The veteran submitted a statement in March 2005 that the
Board has construed as a waiver of initial RO consideration.
See 38 C.F.R. §§ 19.31, 20.1304 (2004). However, in light of
the fact that the veteran's claim is being remanded for other
reasons, the Board asks that additionally received evidence
be considered when the RO readjudicates the veteran's claim.
Additional medical treatment records
In a form submitted to the RO in April 2004, the veteran
indicated that there were additional records from Dr. S. at
the Chronic Back Pain Clinic dated "since early in 2002."
He specifically mentioned results from a magnetic resonance
imaging (MRI) study completed in March 2004 that would be
beneficial to his increased disability rating claim for a low
back disability.
The VCAA requires VA to make reasonable efforts to obtain
relevant records, including private records, that the
claimant adequately identifies. See 38 U.S.C.A.
§ 5103A(b)(1) (West 2002); 38 C.F.R. § 3.159(c)(1) (2004).
To date, the RO has not attempted to associate Dr. S.'s
private treatment records with the claims folder.
Accordingly, this issue must be REMANDED to the Veterans
Benefits Administration (VBA) for the following actions:
1. The veteran should be informed of
the most recent change in the
regulations governing disorders of the
spine. In conjunction with such
notification, the veteran should be
provided with a copy of the revised
regulations, and he should be informed
that he may submit additional evidence
that addresses the revised
regulations.
2. VBA should also request that the
veteran identify any relevant recent
medical examination and treatment
record. VBA should take appropriate
steps to secure any medical treatment
records so identified and associate
them with the veteran's VA claims
folder, to include records from Dr. S.
at the Chronic Back Pain Clinic.
3. VBA should then readjudicate the
veteran's claim in light of all of the
evidence of record, including the
updated treatment records from the VA
medical center in Indianapolis, the
July 2004 VA spine examination and any
additional medical treatment records
associated with the claims file. If
the claim remains denied, in whole or
in part, VBA should provide the
veteran with a supplemental statement
of the case and allow an appropriate
period of time for response. The case
should then be returned to the Board
for further consideration, if
otherwise in order.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. See
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner. See The Veterans Benefits
Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat.
2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs